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<h1><a href="https://archiveofourown.org/works/23024476">The "Exclusionary Rule" and Violence Against Telepaths (Part 1)</a> by <a class='authorlink' href='https://archiveofourown.org/users/pallasite/pseuds/pallasite'>pallasite</a></h1>

<table class="full">

<tr><td><b>Series:</b></td><td>Behind the Gloves [161]</td></tr>

<tr><td><b>Category:</b></td><td>Babylon 5, Babylon 5 &amp; Related Fandoms</td></tr>

<tr><td><b>Genre:</b></td><td>Backstory, Bigotry &amp; Prejudice, Canon Compliant, Constitutional law, Criminal Law, Discrimination, Essays, Fix-It, Gen, How Normals Get Away With Assault, How Normals Get Away With Murder, How canon misled you, Law, People are not devices, Psi Corps, Rules of Evidence, Telepath Law (Babylon 5), The Earth Alliance Justice System Is Broken, Vigilante Justice, Worldbuilding, double standards, telepaths</td></tr>

<tr><td><b>Language:</b></td><td>English</td></tr>

<tr><td><b>Status:</b></td><td>Completed</td></tr>

<tr><td><b>Published:</b></td><td>2020-03-06</td></tr>

<tr><td><b>Updated:</b></td><td>2020-03-06</td></tr>

<tr><td><b>Packaged:</b></td><td>2021-05-01 12:34:42</td></tr>

<tr><td><b>Rating:</b></td><td>Teen And Up Audiences</td></tr>

<tr><td><b>Warnings:</b></td><td>No Archive Warnings Apply</td></tr>

<tr><td><b>Chapters:</b></td><td>1</td></tr>

<tr><td><b>Words:</b></td><td>3,044</td></tr>

<tr><td><b>Publisher:</b></td><td>archiveofourown.org</td></tr>

<tr><td><b>Story URL:</b></td><td>https://archiveofourown.org/works/23024476</td></tr>

<tr><td><b>Author URL:</b></td><td>https://archiveofourown.org/users/pallasite/pseuds/pallasite</td></tr>

<tr><td><b>Summary:</b></td><td><div class="userstuff">
              <p>The rule excluding scans from evidence in criminal cases appears on its face to be about maintaining "fairness" (and who could be against "fairness?"), but under the surface lurks a darker reality: that this exclusion (perhaps intentionally) shields normals from the legal consequences of assaulting, abusing and murdering telepaths.</p><p>This essay explains what the "exclusionary rule" means in law (including the doctrine of the "fruit of the poisonous tree"), using canon cases for illustration. Subsequent essays will provide more canon examples, and will address both the intent of the rule (both in-universe and out of it), as well as its devastating impact on the telepath community for over 150 years.</p><p>The prologue of <em>Behind the Gloves</em> is <a href="http://archiveofourown.org/works/10153487">here</a> - please read!</p>
            </div></td></tr>

<tr><td><b>Series:</b></td><td>Behind the Gloves [161]</td></tr>

<tr><td><b>Series URL:</b></td><td>https://archiveofourown.org/series/677654</td></tr>

<tr><td><b>Kudos:</b></td><td>3</td></tr>

</table>

<a name="section0001"><h2>The "Exclusionary Rule" and Violence Against Telepaths (Part 1)</h2></a>
<div class="story"><div class="fff_chapter_notes fff_head_notes"><b>Author's Note:</b><blockquote class="userstuff">
      <p>New to <em>Behind the Gloves</em>? What is this series? Where are the acknowledgements, table of contents and universe timelines? See <a href="https://archiveofourown.org/works/10184558/chapters/22620590">here</a>.</p><p>If you like <em>Behind the Gloves</em> and would like to send me an email, I can be reached at counterintuitive at protonmail dot com. Do you have questions? Would you like to tell me what you like about this project? Email me!</p><p>I also have an <a href="https://behind-the-gloves.tumblr.com/">ask blog</a>, a <a href="https://www.tumblr.com/blog/pallasite-writes">writing blog</a>, and a "P3 life" Tumblr <a href="https://www.tumblr.com/blog/p3-life">here</a> with funny anecdotes. :)</p>
    </blockquote></div><div class="userstuff module">
    
    <p>To recap, two years ago I wrote a series of essays on the meaning of <a href="https://archiveofourown.org/works/14677659">due process</a> (a term thrown around a lot in canon, but doesn't quite mean what you might think is does), and how normals ended up with the unassailable <a href="https://archiveofourown.org/works/14681790">right not to be scanned</a> (unlike telepaths). (There are eight history/law essays so far, but they eighth is about tort law, not this. You can find links to the relevant essays, and their summaries, in the essays I linked above.)</p><p>The Earth Alliance, through legislation and case law, established generations before the show:</p>
<ul>
<li>There is one set of rules for searches and seizures for everyone and everything else (physical or digital) - the warrant system - and a separate rule for telepathy.</li>
<li>There is one set of rules of evidence for admissibility in court for everything else (documents, eyewitness testimony, etc.) - and a separate rule for telepathy.</li>
</ul><p>To make this all possible, telepaths were legally reclassified from "people" to quasi-people: legally people (in certain respects) and "devices" in others. This is why they were originally "regulated" under Crawford's Committee on Technology and Privacy. (This is canon!)</p><p>The laws, all of them, were never meant to protect telepaths. They were all intended to protect normals "from telepaths."</p><p>And the rules of evidence are no different.</p><p>Remember that everything that follows here (and in subsequent essays) about telepaths and the rules of evidence rests <em>intrinsically</em> on the legal classification of telepaths not as full people. And this isn't a historical quirk, no longer relevant in the era of the show - the rules of evidence <em>directly</em> lead to a result where telepaths are assaulted, abused and murdered all across the Earth Alliance, and very little usually happens to their attackers. Telepath lives do not matter, normal lives do.</p><p>This is not a bug. <em><strong>This is a feature.</strong></em></p><p>Now, there's more than one reason that normals typically get away with assault and murder when the victim is a telepath. One, as we discussed here (<a href="https://archiveofourown.org/works/10507632">Back on Io Station...</a>), normals often cover for each other and impede the investigations conducted by Psi Cops. (We see some version of this going on just about every time Bester arrives on the station... plus Ivanova trying to kill him, and so on). She never faces any consequences because everyone around her covers for her.</p><p>Normals do that. Sometimes the normal police are even <em>in on it</em> (on Beta Colony, on Europa... all over the place honestly). That's a whole 'nother problem.</p><p>Two, there's strained resources. Telepaths are .1% of the population, one in a thousand. A far smaller percentage of those are P12s, and most P12s aren't Psi Cops. There are ten billion people on Earth alone, and many more on off-world colonies.</p><p>And Psi Cops are first and foremost supposed to protect the normal public from telepaths - not the other way around. They're "supposed" to go after telepaths who use their senses "wrong", they're supposed to catch and arrest telepaths for going out in public without gloves or an insignia, they're supposed to arrest telepaths for expressing political speech in public or attempting to run for public office or hold proscribed professions - not disrupt and shut down <strong><em>international (or interplanetary) crime networks</em></strong> to traffic telepaths into slavery and sexual abuse.</p><p>Most Psi Cops can't or won't even try to take these larger issues on. Bester goes <em><strong>alone</strong></em> to shut down <a href="https://archiveofourown.org/works/12827937">Franklin's network</a>. He and Lyta go <em><strong>alone</strong></em> to Beta colony to stop a serial killer, because the local Psi Corps office was too under-staffed, and terrified, to do anything about it. (As Lyta says, "we did what we had to do because no one else would.")</p><p>And in case after case, Bester does what he has to because else no one else can, or will.</p><p>(And the situation has always been this bad - seventy or so years earlier, Claude Heckman <a href="https://archiveofourown.org/works/10841091">infiltrated Rentech alone</a>, but was never able to stop the telepath trafficking/slavery network. And does anyone really think there was anyone else on Mars willing or able to stop Edgars' plot to enslave and kill ALL TELEPATHS?)</p><p>Normals covering for each other is one issue. Resources are an issue, normal priorities/expectations are an issue, and willingness/ability of Psi Cops to tackle the hard problems - alone - is another issue. But let's pretend that despite all of this, the Corps actually catches one of these monsters in the act, and takes pictures, and arrests the perpetrator (like in Fatima's case). Then the poor telepath finally will get justice, right?</p><p>No. Oh, no.</p><p>First, there are the obvious barriers - telepaths are not allowed to be lawyers, judges or members of the jury. Unless the defendant did something extreme by mundane standards (a very high bar), everyone's probably going, "hey, he didn't do anything I wouldn't have done in his place." Fatima's killer cleared that bar - which is why Bey wanted to bring that one to trial - but the run-of-the-mill normal who tosses someone out a window (e.g. Ivanova) or punches someone in the face is just, well, <em>normal</em>.</p><p>(Not to pick exclusively on Ivanova, because iirc every normal other than Marcus does something on-screen or off-screen - and some are worse than her - it's just that she provides the easiest examples to illustrate my point. And the fact that I couldn't find anyone but Marcus who doesn't do something - or many somethings - only underscores my point.)</p><p>But let's say all these hurdles are cleared. Let's say we've got a case like Fatima's, where the facts are so extremely horrible, and the victim so sympathetic (a teenage girl), that even a normal jury would be likely to say "no way, that crosses a line, dude!"</p><p>Does the normal face justice? Probably not! Because now we're up against the law, and the law has been written to protect normals from telepaths, not the other way around.</p><p>
  <strong>What is the "exclusionary rule"?</strong>
</p><p>
  <span class="ILfuVd"> <span class="e24Kjd">"In the United States, the exclusionary rule is a legal rule, based on constitutional law, that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law."</span> </span>
</p><p>
  <span class="ILfuVd"> <span class="e24Kjd">Similar rules exist in other countries, but since the show bases this on American law, I'm explaining this in an American context.</span></span>
</p><p>
  <span class="ILfuVd"><span class="e24Kjd">As I've already explained, normals (and only normals) have a <a href="https://archiveofourown.org/works/14681790">Constitutional right not to be scanned</a>. To scan a suspect or witness without their explicit consent is illegal. This means that any evidence collected by the police, if they found it pursuant to a scan, is <em><strong>inadmissible in court</strong></em>.</span> </span>
</p><p>
  <span class="ILfuVd">In legal terms, this <span class="e24Kjd">is called the "<a href="https://www.law.cornell.edu/wex/fruit_of_the_poisonous_tree">fruit of the poisonous tree doctrine</a>", and it's intended to deter police misconduct: evidence is inadmissible in court if it was illegally obtained (with a few exceptions which are largely irrelevant here).</span></span>
</p><p>
  <span class="ILfuVd"><span class="e24Kjd">Of course, in this world, it's based on a functioning warrant system - police are supposed to get warrants before they conduct a search or seizure, and we presume that if there is evidence of criminal activity, the police will be able to get that warrant.</span> </span>
</p><p>
  <span class="ILfuVd"> <span class="e24Kjd">Except oh wait:</span> </span>
</p>
<ul>
<li>There is one set of rules for searches and seizures for everyone and everything else (physical or digital) - the warrant system - and a separate rule for telepathy.</li>
</ul><p>It's not possible to get a warrant to scan someone, because normals have an absolute right not to be scanned, and even if they agree to be scanned and to allow the report into evidence, it's <em>still</em> not admissible on its own.</p><p>And we're supposed to assume that if Psi Cops go to the normal magistrates and ask for search warrants for physical and digital spaces, to help catch normal criminals who are abusing telepaths, they're going to get these warrants? And get them in a timely enough fashion?</p><p>Oh, wait, that doesn't happen. We see no trace of this ever happening in canon.</p><p>Magistrates don't want to help telepaths track down bad normals. Normals cover for each other, remember? Once you let those SCARY, SCARY PSI COPS into your home/office/space, you never know what EVIL PLOTS THEY WILL COOK UP AGAINST YOU! (like they all thought Bester was up to, on the station). The Corps is forever "up to no good," remember? No one can trust them, remember?</p><p>From JMSNews, Usenet, 1/25/94:</p><p>          "Re: the Psi Corps...let's have a moment of logic for a moment. Does anyone here think that the Judicial System will, for a *moment*, let another government agency come into their courts with pronouncements of guilt or innocence? Lawyers wouldn't have it, judges wouldn't have it, the Supreme Court would rule against it. Also, please remember that the Corps is viewed with some measure of suspicion by the rest of the government. As you'll see in the course of the series. They aren't perceived automatically as the Good Guys."</p><p>(I come back to the rest of this Usenet post later. It gets "better" from there.)</p><p>Yeah, those fuckers aren't giving Psi Cops warrants, except in rare cases, and probably under duress.</p><p>So back to Fatima.</p><p>Bey doesn't scan the landlady - he tricks her into telling him where she sent Fatima.</p><p>          "If she was on holiday, why did she ask you about jobs?" Bey asked, not looking up from his notebook.</p><p>          "Lots of kids get part-time-" She froze, realizing that this was the first mention of jobs thus far. Bey looked at her, a bit archly.</p><p>          "I know the law," she said, sullenly. "You aren't allowed to do that."</p><p>          "Do what? Ask you a question? Madame, of course I am."</p><p>          "You aren't allowed to read my mind."</p><p>          "I didn't," he said mildly. "I guessed, and you obliged by being stupid. That's at least twice you've been stupid with us, Madame. Once when you lied to us, again when you let me trick you. Please, do not be stupid again. I now have probable cause to do a scan, if I wish. I can have the authority in less than an hour. Have you ever been scanned, Ms. Lyster? I assure you, you won't like it. Personally, I'd prefer not to do one - I don't imagine I would like the inside of your mind." He leaned on the antique, polished wood of the counter. "Why not just tell me what I want to know? I will find out, one way or the other."</p><p>This is a total bluff - there is <strong><em>no such thing</em></strong> as "probable cause to do a scan." He is betting she doesn't really know the law as well as she claims to, and he's right. And she folds, and gives him the name of the trafficker, and the address.</p><p>He recognizes the name, and knows Fatima is in <em>serious danger</em>.</p><p>He telepathically drops the landlady as he's leaving, as a deterrent. Bester, horrified, because The Rules Are Always Good!, asks about it. Bey says she'll wake up with a headache and have nightmares for six months, but otherwise will be OK - and it's more than she deserves. He tells Bester a little bit about where they're heading.</p><p>If he didn't alter the landlady's memory of how she fell/what happened, she could file suit against the Corps for it, and if it were anyone less senior than <em>Sandoval Bey</em>, it could easily be a career-ender (or worse). But this is Bey, the most respected man in the Corps, and he has bigger problems than anything the normal landlady could do to him (e.g. Johnston). And no one in the Corps who took that complaint against Bey would do anything than toss it in the trash. They know if Bey did that, it was for a <em>damn good reason</em>. And that he did - whether the landlady knows why or not, she's not going to send any more telepaths to human traffickers.</p><p>And then he and the other Corps personnel confront the traffickers, "armed for bear," and try to rescue Fatima.</p><p>When the firefight is over, surrounded by a pile of bodies, Bey confronts the head trafficker, Saskia Grijs.</p><p>What does she say?</p><p>"I want my lawyer."</p><p>Unlike the landlady, she does know the rules. And according to the rules (their version of the <em>Miranda</em> rules), at this point, interrogation has to end until she has a lawyer present. She won't talk, she won't consent to a scan, so game over. And nothing they've discovered in that room is admissible, either, because they never got a warrant to search it. Game over: Fatima dies, the criminals get away with it and go right back to trafficking, and the Corps has to fight all the legal challenges and complaints filed by the normal criminals and and their families against <em><strong>them</strong></em>.</p><p>But if Bey had tried to get a warrant to search the building, even if he had finally got one, it would have taken a very long time. Fatima would be dead, and someone would have tipped off the gang - any other telepath youth held in that building would be whisked away, and the gang itself would be gone without a trace, with all their documents and evidence, long before the Corps showed up. For all he knows, the mundane police/magistrates are actually in on it, getting kickbacks from the gang to help cover all this up - it has happened. If the criminals only go after telepath youth, not normals, and there's lots of money to be made, plenty of normals would turn a blind eye.</p><p>And Bey's seen all this before - and the Corps has probably failed to catch Ms. Grijs before, since he knows her name - so he decides to forfeit a successful prosecution if they can just save Fatima's life. He's acting like a father - the children at that school are <em>his children</em>, and he will risk anything to bring them home alive.</p><p>So his team kills most of the gang, and he scans Grijs, drops her, and runs off with his team to the room where Fatima is being tortured.</p><p>It's still too late.</p><p>And since that scan was illegal, nothing he finds in that room - not the pictures, not the physical evidence - is admissible in court. Fatima's killer will get a lawyer, and that lawyer will argue that the only way the Corps found them was via an illegal scan, and the presumption of guilt here is on the Corps. Grijs might even testify against the Corps, too. So while there is a non-zero chance that the evidence would get to a jury and the jury would convict, it's slim.</p><p>Bey does it anyway, to save her life.</p><p>Because all telepaths are family, even those who run away. Even those who hate the Corps.</p><p>And even if the killer gets off, that human trafficking cell is pretty damn shut down, since most of them are dead. It will take a while to get that back up and running.</p><p>Sometimes a partial victory is the best one can get - especially telepaths. That's the best we can ever get.</p><p>-----</p><p>Bey broke all the rules, and <em>still</em> didn't save Fatima. Bey only rescued Bester in Paris by a matter of seconds. Bey probably scanned someone to save him, too. (Bester doesn't want to think about that.)</p><p>But when he gets out in the real world, as a Psi Cop, he sees what Bey saw. He sees the trafficking, he sees the serial killers, he sees the routine violence, he sees the <em>industrial genocide</em> plot to kill all of telepath-kind.</p><p>And he sees the truth about the legal system (including the rules of evidence), that normals set the whole thing up to keep telepaths "in their place." "Fair" is whatever normals say it is. "Justice" is whatever normals say it is. "Rights" are whatever normals say they are.</p><p>Telepaths are presumed to be liars - and part of an evil global conspiracy - so they can't testify to what they observe like normals can. Even if a normal witness agrees to a scan to bolster his or her testimony or help to recover forgotten details, it's <em>still</em> not admissible unless physical evidence can be found to corroborate those details.</p><p>Warrants? Nah. Cooperation with the normal police? Nah, we saw that on Beta - they were on in it. Cooperation with EarthForce? Usually not. (Lochley is the only one who does, and she's presented as a "bad guy" for it.)</p><p>When Bester and Kelsey come to catch Ironheart, a rogue who put the whole station in danger, no one there knows Bester "from Adam". They can't have anything against him personally, because they've never met him before. So what happens? They verbally abuse him the moment they see him. He has jurisdiction, but they don't give a shit, and interfere in every way they can. Sinclair punches him in the face, causing him to lose control of Ironheart, who turns around and kills Kelsey (Bester's partner Psi Cop). Sinclair faces no consequences.</p><p>If that's what happens when they're going after a rogue telepath who is a clear and present danger to hundreds of thousands, you think it's any better when they're going after normal criminals, whose only victims are teeps?</p><p>It's not.</p><p>-----</p><p>This essay was about just one rule (a biggie, one that's mentioned over a dozen times in canon) but it's one of hundreds - rule after rule that normals have written to choke telepaths. And then Fatima is dead and Bey is crying, thinking <em>goddamn them all to hell!</em></p><p>And Bester knows he means something bigger than the people who trafficked and killed Fatima, but he doesn't understand - he's lived such a sheltered life, he knows nothing about the real world, about the <em>system</em> that keeps telepaths down. He thinks Bey might even be referring to the Corps itself, because he sees what sympathy he has for poor Fatima. He doesn't understand. He even thinks Bey's sympathy for Fatima might be wrong.</p><p>He's has spent his whole life in the bubble of life at the Corps school - and in that school, they can only teach him what normals have approved the children to be taught. ("The rules are good!") He doesn't understand the history. He doesn't understand the <em>system</em>.</p><p>And in canon, you know who helped write this legal framework in the first place? None other than Kevin Vacit.</p><p>That's my next essay.</p>
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